AGREEMENT AND PLAN OF MERGER
OF TRUEVISION, INC.,
A DELAWARE CORPORATION,
AND
RASTEROPS,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of _________, 1995 (the
"Agreement") is between Truevision, Inc., a Delaware corporation ("Truevision"),
and RasterOps, a California corporation ("RasterOps"). Truevision and RasterOps
are sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
A. Truevision is a corporation duly organized and existing under the laws
of the State of Delaware and has an authorized capital of 27,000,000 shares,
25,000,000 of which are designated "Common Stock," $0.001 par value, and
2,000,000 of which are designated "Preferred Stock," $0.001 par value. As of
the date hereof, 100 shares of Common Stock were issued and outstanding, all of
which were held by RasterOps and no shares of Preferred Stock were issued and
outstanding.
B. RasterOps is a corporation duly organized and existing under the laws
of the State of California and has an authorized capital of 17,000,000 shares,
15,000,000 of which are designated "Common Stock," no par value, and 2,000,000
of which are designated "Preferred Stock," no par value. As of August 25, 1995,
12,395,545 shares of Common Stock and no shares of Preferred Stock were issued
and outstanding.
C. The Board of Directors of RasterOps has determined that, for the
purpose of effecting the reincorporation of RasterOps in the State of Delaware,
it is advisable and in the best interests of RasterOps and its shareholders that
RasterOps merge with and into Truevision upon the terms and conditions herein
provided.
D. The respective Boards of Directors of Truevision and RasterOps have
approved this Agreement and have directed that this Agreement be submitted to a
vote of their respective sole stockholder and shareholders, and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Truevision and RasterOps hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
RasterOps shall be merged with and into Truevision (the "Merger"), the separate
existence of RasterOps shall cease and Truevision shall survive the Merger and
shall continue to be governed by the laws of the State of Delaware, and
Truevision shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be Truevision,
Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and Merger shall have been adopted and approved by
the stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
Corporations Code;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation Law
shall have been filed with the Secretary of State of the State of Delaware.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of RasterOps shall cease and Truevision, as the Surviving
Corporation (i) shall continue to possess all of its assets, rights, powers and
property as constituted immediately prior to the Effective Date of the Merger,
(ii) shall be subject to all actions previously taken by its and RasterOps'
Board of Directors, (iii) shall succeed, without other transfer, to all of the
assets, rights, powers and property of RasterOps in the manner more fully set
forth in Section 259 of the Delaware General Corporation Law, (iv) shall
continue to be subject to all of the debts, liabilities and obligations of
Truevision as constituted immediately prior to the Effective Date of the Merger,
and (v) shall succeed, without other transfer, to all of the debts, liabilities
and obligations of RasterOps in the same manner as if Truevision had itself
incurred them, all as more fully provided under the applicable provisions of the
Delaware General Corporation Law and the California Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Truevision as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the Certificate of Incorporation of
the Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.2 BYLAWS. The Bylaws of Truevision as in effect immediately prior to
the Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of RasterOps
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, or the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 RASTEROPS COMMON STOCK. Upon the Effective Date of the Merger, each
share of RasterOps Common Stock issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be converted into
and exchanged for one (1) fully paid and nonassessable share of Common Stock,
$0.001 par value, of the Surviving Corporation.
3.2 RASTEROPS OPTIONS AND CONVERTIBLE SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume the obligations of RasterOps under the warrants to purchase Common
Stock then outstanding, the option plans and all other employee benefit plans
of RasterOps. Each outstanding and unexercised option, or other right to
purchase, or security convertible into, RasterOps Common Stock (a "Right") shall
become an option, or right to purchase or a security convertible into the
Surviving Corporation's Common Stock on the basis of one (1) share of the
Surviving Corporation's Common Stock for each share of RasterOps Common Stock
issuable pursuant to any such Right, on the same terms and conditions and at an
exercise price per share equal to the exercise price applicable to any such
RasterOps Right at the Effective Date of the
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Merger. This Section 3.2(a) shall not apply to outstanding shares of RasterOps
Common Stock. Such Common Stock is subject to Section 3.1 hereof.
(b) A number of shares of the Surviving Corporation's Common Stock
shall be reserved for issuance upon the exercise of options and convertible
securities equal to the number of shares of RasterOps Common Stock so reserved
immediately prior to the Effective Date of the Merger.
3.3 TRUEVISION COMMON STOCK. Upon the Effective Date of the Merger, each
share of Common Stock, $0.001 par value, of Truevision issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by Truevision, the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of RasterOps
Common Stock may, at such stockholder's option, surrender the same for
cancellation to First Interstate Bank, as exchange agent (the "Exchange Agent"),
and each such holder shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of shares of the Surviving
Corporation's Common Stock into which the surrendered shares were converted as
herein provided. Unless and until so surrendered, each outstanding certificate
theretofore representing shares of RasterOps Common Stock shall be deemed for
all purposes to represent the number of shares of the Surviving Corporation's
Common Stock into which such shares of RasterOps Common Stock were converted in
the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or the Exchange Agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of RasterOps so converted
and given in exchange therefore, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws, or
other such additional legends as agreed upon by the holder and the Surviving
Corporation.
If any certificate for shares of Truevision stock is to be issued in a name
other than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that the certificate so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and comply with applicable
securities laws and that the person requesting such transfer pay to the Exchange
Agent any transfer or other taxes payable by reason of issuance of such new
certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of Truevision that such
tax has been paid or is not payable.
IV. GENERAL
4.1 COVENANTS OF TRUEVISION. Truevision covenants and agrees that it
will, on or before the Effective Date of the Merger:
(a) qualify a subsidiary to do business as a foreign corporation in
the State of California and in connection therewith irrevocably appoint an agent
for service of process as required under the provisions of Section 2105 of the
California General Corporation Law;
(b) file any and all documents with the California Franchise Tax
Board necessary for the assumption by Truevision of all of the franchise tax
liabilities of RasterOps; and
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(c) take such other actions as may be required by the California
General Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
Truevision or by its successors or assigns, there shall be executed and
delivered on behalf of RasterOps such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other actions as
shall be appropriate or necessary in order to vest or perfect in or conform of
record or otherwise by Truevision the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of RasterOps and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Truevision are fully authorized in
the name and on behalf of RasterOps or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either RasterOps or of Truevision, or of
both, notwithstanding the approval of this Agreement by the shareholders of
RasterOps or by the sole stockholder of Truevision, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
Delaware and California, provided that an amendment made subsequent to the
adoption of this Agreement by the stockholders of either Constituent Corporation
shall not: (a) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any of the shares of any class or series thereof of such Constituent
Corporation; (b) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger; or (c) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of any class or series of capital stock of
any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving Corporation
in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
County of New Castle and The Corporation Trust Company is the registered agent
of the Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Truevision, Inc., a Delaware
corporation, and RasterOps, a California corporation, is hereby executed on
behalf of each of such two corporations and attested by their respective
officers thereunto duly authorized.
TRUEVISION, INC.,
a Delaware corporation
By:
---------------------------------------
Xxxxx X. Doctor
President and Chief Executive Officer
ATTEST:
-----------------------------------
R. Xxxx Xxxxxx
Senior Vice President, Chief
Financial Officer and Secretary
RASTEROPS,
a California corporation
By:
---------------------------------------
Xxxxx X. Doctor
President and Chief Executive Officer
ATTEST:
-----------------------------------
R. Xxxx Xxxxxx
Senior Vice President, Chief
Financial Officer and Secretary
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